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Counsel-expert communications: the debate rages on

Two recent decisions have shaken up the litigation bar. The Ontario Superior Court, in Bailey v Barbour,1explicitly set out the court’s expectations of an expert’s proper behaviour. In the subsequent decision of Moore v. Getahun,2 the Ontario Superior Court then restricted the extent to which a lawyer can confer with his/her expert prior to the expert reaching his/her opinion.

In Bailey, the parties had disputed their respective rights to certain property located on the water’s edge along Georgian Bay, Ontario. The defendant’s lawyer retained an expert, who held himself out to be the manager of Boundary Litigation Services. In correspondence to the plaintiff’s counsel, the expert wrote that his role was “not to advocate a client’s position,” but to “collect and analyze evidence to find the true position of boundaries and unbiased conclusions…” Yet, somewhere along the line, the expert deviated from that goal. As well, defence counsel allowed him to disregard his duty to the court.3

Indications that the expert was biased included the exchange of 50 to 100 emails between defence counsel and the expert, the expert sitting in on all ten days of the trial, the expert passing handwritten notes to counsel during the trial wherein he made suggestions and prepared questions to put to the witnesses, the expert making inappropriate and derogatory comments to defence counsel regarding other experts’ competence, opinion, and understanding of the issues, and the expert giving opinion in areas outside his own area of expertise.4

In her reasons, Justice Healey clearly stated that experts have an obligation and a duty to the court to remain unbiased, impartial and objective,5 and that the most important thing for an expert to retain throughout the litigation process is a position of distance from the interests of the party who engages them, in order that his or her impartiality remains intact. In order to make the role of the expert more clear than it may have been in the past, Rule 4.1.(1) came into effect in January 1, 2010, in which the duty of the expert witness is set out.6The expert’s duty is to provide assistance to the court to determine any matter in issue. That duty prevails over any obligation owed by the expert to the party by whom or on whose behalf he or she is engaged.7 In other words, irrespective of which party retains the expert, the expert is a neutral truth-teller, even if that truth adversely affects the party who retained him.

Justice Healey was not finished. She then turned her attention to the duty of the lawyer who hired the expert, and stated that lawyers have a duty to the court to not seek to elicit expert testimony from a witness who they know is unable to provide an objective, unbiased opinion in relation to matters within his expertise.8 In her view, defence counsel’s actions were so egregious in that defence counsel knew or should have known of his expert’s bias. Citing Rule 57.07(1),9 she ordered defence counsel to pay 20% of the $490,000 costs award against the defendant, Barbour.

In the subsequent decision of Moore v Getahun, Justice Wilson (Ontario Superior Court) unequivocally articulated what the court expects from counsels’ interactions with their experts, and that the historically accepted practice of counsel reviewing draft reports should stop.

Under the pre-2010 Rule 53.03,10 experts merely had to provide their name, address, qualifications, summary opinion, and substance of their report. Under the new Rule, in addition to these requirements, and of paramount importance although causing the most consternation, is that experts must now include all instructions provided by counsel to the expert in relation to the proceeding. Until now, these communications had been protected by litigation privilege.

In Moore, the plaintiff had lost control of his motorcycle, causing it to careen into a vehicle at high speed. Among other injuries, Moore fractured his right wrist. At the hospital, the emergency room doctor, Getahun, applied a full circumferential cast after a partially successful closed reduction. The following day, complaining of pain, swelling and tightness, Moore attended at another hospital, where he was diagnosed with compartment syndrome.11 The cast was removed, and Moore underwent emergency treatment. Moore suffered permanent injuries to his right arm as a result of the sequelae of compartment syndrome. He then brought an action against Getahun for medical malpractice.

At trial, only Getahun’s liability was in issue, as damages had been agreed to. Several evidentiary issues arose concerning the admissibility of expert evidence under Rule 53.03.12 One of the issues revolved around the fact that it became known, during the proceedings, that Getahun’s counsel had received a draft expert report and had subsequently spent 90 minutes on a telephone conference with his expert, during which he provided comments and input into the final version of the report. Justice Wilson had to decide whether it was appropriate for counsel to review draft reports and provide input to shape the expert’s final opinion. She determined it was not.

Justice Wilson explicitly declared that “discussions or meetings between counsel and an expert to review and shape a draft expert report are no longer acceptable.”13 In her view, the purpose of Rule 53.03 is to ensure the expert witness’ independence and integrity. The expert’s primary duty is to assist the court. In light of this change in the role of the expert witness, she concluded that counsel’s prior practice of reviewing draft reports should stop.14 In addition, she indicated that the practice of discussing draft reports with counsel is improper and undermines both the purpose of Rule 53.03, as well as the expert’s credibility and neutrality.15

The appeal in Moore was heard in September 2014, but the reasons have not yet been released. So, it remains to be seen whether this restrictive view of the Superior Court will be overturned. Although the Mooredecision has subsequently been considered by other courts, it has not been followed. Furthermore, a prominent Ontario lawyers’ group (The Holland Group), comprised of both plaintiff and defence counsel, sought intervenor status in the appeal, and has announced that it will continue to review and discuss draft reports despite this ruling.

In the meantime, some best practices are being advanced by two advocacy groups, one of which is chaired by Justice Osborne, whom Justice Wilson invoked in her argument for clarity and expert independence. The Holland Group makes the case for continued conference between counsel and its expert, as such communications are necessary to achieve the purpose of the report. Of course, the Group draws a line at counsel attempting to change the substance of the expert’s opinion. Likewise, the Advocates’ Society rejects Justice Wilson’s decision, and instead recommends that counsel refer to the Society’s 9 Principles of Civility16 for guidance in interacting with its expert.

The idea that counsel cannot engage in private discussions with their expert is impractical and unworkable. In many circumstances, including where an expert has made factual errors, has made comments that are open to various interpretations, or where experts have misstated a legal test, it is imperative that counsel discuss initial findings with their expert. However, counsel would be wise to clearly instruct their expert at the outset as to what it is that is being requested of him/her. Any further communication should be in writing and made available for production, otherwise, counsel risk the report being deemed inadmissible at trial. In addition, despite the Bailey costs award against counsel, the onus lies with the expert to ensure he/she remains neutral.

Until this matter is settled, insurers may want to consider retaining two experts: one to guide counsel on technical issues (he would be a partisan consultant, and would not give evidence at trial) and another expert as the impartial expert to provide an opinion. Unfortunately, it appears that compliance with these decisions will lead to significantly increased costs to all parties – which is what the 2010 amendments to the Rules were meant to avoid.

Tune in to our Spring 2015 edition of the Lloyd’s Brief, where we will bring you the next instalment of the expert-counsel communication saga, and will be commenting on the results of the Moore appeal.

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Compare jurisdictions: Litigation: Enforcement of Foreign Judgments

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